With the COVID-19 pandemic, the U.S. Citizenship and Immigration Services (USCIS) backlog for migration benefits has only continued to grow higher, reaching record highs. This has caused the processing of some benefits, including those for employment authorization for L-2 visa holders, to take more than a year.
In order to reduce the processing backlog, USCIS announced late last year that L-2 spouses would be granted employment authorization incident to their status as L dependent spouses. This same announcement additionally confirmed that Employment Authorization Documents would not be required in order to complete the Form I-9 for these spouses to work. Unfortunately, at the time, the USCIS failed to indicate how employers intended to verify the work status of these spouses in the absence of valid EAD documentation.
However, the USCIS has recently begun to address this problem through the addition of an “S” annotation to certain I-94s issued at entry starting January 31st, 2022. This annotation would indicate that L-2 spouses were authorized to work regardless of the issuance of a separate EAD. This did not completely solve the issue, though, because the “S” annotation was typically only issued to spouses upon entry to the U.S., leaving those already present without a solution. However, now the “S” annotation will be added to all Spousal L-2 I-94s, which may then be downloaded from the Customs and Border Patrol website.
These updated I-94s may then be presented to employers as proof of permission to work. For employers, a valid I-94 with an “S” annotation may be considered a List C document for the purposes of completing the Form I-9. An L-2 spouse will still need to present a valid identity document from List B in order to finish Form I-9.
These changes to policy occurred following a change to USCIS policy in November 2021 following a lawsuit against the federal agency. These changes recognized that both H-4 and L-2 spouses are work-authorized incidents to their status and, as a result, do not need to be issued a separate EAD. This addressed the issue of employment gaps which were a frequent occurrence due to delays in paperwork processing when EADs needed to be renewed.
As these changes show, completing the Form I-9 for foreign national workers can quickly become complex and requires continuous vigilance to keep up with the ever-shifting legal landscape. Learn More
The best way to ensure your policies are up to date is to invest in an electronic I-9 management tool. This can guide hiring personnel through every step of the employment verification process and provides effortless management and storage of I-9 documentation.
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